RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 August 2007
      DOCKET NUMBER:  AR20070003422


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Ms. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. Richard T. Dunbar             |     |Member               |
|     |Mr. John T. Meixell               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests in effect, that his general discharge be
upgraded to an honorable discharge and that the separation code currently
reflected on his Certificate of Release or Discharge (DD Form 214) be
changed to a code that will allow him to become a civil service employee.

2.  The applicant states that, although the type of discharge that he
received and the separation code that he was assigned are correct, he would
like to have them changed.

3.  The applicant provides no additional documentation in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law also allows the
Army Board for Correction of Military Records (ABCMR) to excuse an
applicant’s failure to timely file within the 3-year statute of limitations
if the ABCMR determines it would be in the interest of justice to do so.
While it appears the applicant did not file within the time frame provided
in the statute of limitations, the ABCMR has elected to conduct a
substantive review of this case and, only to the extent relief, if any, is
granted, has determined it is in the interest of justice to excuse the
applicant’s failure to timely file.  In all other respects, there are
insufficient bases to waive the statute of limitations for timely filing.

2.  On 25 January 1983, he enlisted in the Army in Miami, Florida, for 3
years, in the pay grade of E-1.  He successfully completed his training as
a Defense Acquisition Radar Operator.  He was promoted to the pay grade of
E-2 on 25 July 1983 and he was promoted to the pay grade of E-3 on 1
November 1983.

3.  The applicant was counseled on 29 November 1983 regarding a check that
was returned for insufficient funds.  He was informed that he had 5 days to
make full restitution on the check.  He was also informed that the issuance
of bad checks would not be tolerated; that it was his responsibility to
insure that he had sufficient funds in his account to cover all checks
written by him; and that




continued action of this nature would result in the issuance of a letter of
reprimand, a bar to reenlistment, action under the Uniform Code of Military
Justice or action to eliminate him under the provisions of Army Regulation
635-200, chapter 13 or chapter 14.

4.  On 2 October 1984, the applicant was counseled regarding his desire to
apply for a hardship discharge.  During the counseling session, he was
informed of the problems with applying and being approved for a hardship
discharge.  He was also informed that he would be helped in every way
possible; however, the time he used away from his duty appointments may
possibly be made-up at the convenience of the noncommissioned officer in
charge.

5.  The applicant was counseled on 23 October 1984, for failing to meet the
minimum requirement during his physical fitness test.  He was informed that
he was being enrolled in a remedial physical fitness program.  He was
further informed that he would be retested on 21 November 1984 and that if
he failed, recommendations would be made to eliminate him from military
service.

6.  After a thorough Criminal Investigation Division (CID) investigation
had been completed, nonjudicial punishment was imposed against the
applicant on 20 November 1984, for signing, with intent to deceive, an
official statement pertaining to the stereo equipment belonging to another
Soldier and for stealing the stereo equipment of an unknown value, the
property of another Soldier.  His punishment consisted of a reduction to
the pay grade of E-2, a forfeiture of pay and extra duty.

7.  On 27 November 1984, the applicant was counseled again for failing his
physical fitness test.  He was told that his apathetic display showed that
he did not have the self discipline needed to be a Soldier in the United
States Army.

8.  On 18 January 1985, the applicant was notified that he was being
recommended for discharge under the provisions of Army Regulation 635-200,
chapter 14, for misconduct, commission of a serious offense.  The commander
cited larceny, conspiracy and false swearing stemming from the CID
investigation as the basis for his recommendation.  He acknowledged receipt
of the notification on 25 January1985 and, after consulting with counsel,
he opted not to submit a statement in his own behalf.





6.  The appropriate authority approved the recommendation for discharge on
28 January 1985 and he recommended the issuance of a discharge under
honorable conditions.  Accordingly, on 15 February 1985, the applicant was
discharged under honorable conditions, under the provisions of Army
Regulation 635-200, chapter 14, for misconduct, commission of a serious
offense.  He had completed 2 years and 21 days of net active service and he
was furnished a JKQ (misconduct) separation code.

7.  A review of the available records fails to show that the applicant ever
applied to the Army Discharge Review Board for an upgrade of his discharge
within that board's 15-year statute of limitations.

8.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  Chapter 14 establishes policy and
prescribes procedures for separating members for misconduct.  Specific
categories include minor disciplinary infractions, a pattern of misconduct,
commission of a serious offense, convictions by civil authorities,
desertion or absence without leave.  Action will be taken to separate a
member for misconduct when it is clearly established that rehabilitation is
impracticable or is unlikely to succeed.

9.  Army Regulation 635-5 serves as the authority for the preparation of
the DD Form 214.  It provides, in pertinent part, that the DD Form 214 will
be prepared to reflect an individual's service as it exists on the date of
release from active duty or discharge.

10.  Army Regulation 635-5-1 prescribes the specific reasons for separating
soldiers from active duty and the separation codes to be entered on DD Form
214.  It provides that when a soldier’s narrative reason for separation is
misconduct, the separation code JKQ will be entered in block 26 of the DD
Form 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in
compliance with applicable regulations with no indication of procedural
errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were
appropriate considering all the facts of the case.

3.  The applicant was discharged as a result of committing a serious
offense and the type of discharge that he received reflects his overall
record of service as his service was not totally honorable.

4.  The applicant's contentions have been noted.  However, the fact that
the applicant has a desire to gain employment as a civil servant is not
sufficiently mitigating to warrant relief in this case.  He was assigned a
separation code in accordance with the applicable regulation and his
separation code coincides with his reason for discharge.  The separation
code reflected on his DD Form 214 reflects his service and the time of his
discharge.  Therefore, there is no basis for granting relief in this case.

5.  In order to justify correction of a military record the applicant must
show or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the
applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__LE____  __RTD___  __JTM__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





                                  ____    Lester Echols_____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20070003422                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070823                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  626  |144.6000/MISCONDUCT                     |
|2.  671                 |144.6730/SERIOUS OFFENSE                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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